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PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).

The Third Department, in a decision too detailed to fairly summarize here, determined Supreme Court properly denied summary judgment in this dispute about responsibility for storm water runoff which allegedly flooded plaintiff’s property. Supreme Court, however, erred in dismissing plaintiff’s negligence cause of action as duplicative of the nuisance cause of action:

The effect of defendant’s actions was to eliminate what was described as a retention pond on the cemetery land, causing the water to back up onto plaintiff’s property, which, prior to the placement of fill, had never experienced flooding. Since the fill was placed, plaintiff’s property flooded on four occasions, and plaintiff, after the first flood in February 2009, placed defendant on notice of the flood and the resulting damages and asked for its assistance to remedy the problem. Defendant denied responsibility for the flooding and took no remedial efforts to prevent further flooding. Although the causes of action for negligence and private nuisance arise out of the same undisputed facts, it cannot be said that the private nuisance claim arises solely out of the negligence claim. To the contrary, the facts as alleged in plaintiff’s complaint and bills of particulars demonstrate a viable theory of private nuisance based upon intentional conduct, i.e., that defendant eventually knew or should have known that its actions in placing the fill caused substantial interference and nevertheless continued it … . WFE Ventures, Inc. v GBD Lake Placid, LLC, 2021 NY Slip Op 04683, Third Dept 8-12-21

 

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